Is Alberta’s Mental Health Act Sufficiently Protecting Patients?

By: Lorian Hardcastle

PDF Version: Is Alberta’s Mental Health Act Sufficiently Protecting Patients?

Case Commented On: JH v Alberta Health Services, 2017 ABQB 477 (CanLII)

At first blush, JH v Alberta Health Services does not seem to warrant much attention. It is an oral judgement relating to a procedural matter—whether a plaintiff can proceed with a moot claim. However, this case highlights several important issues in mental health law and its resolution could result in significant reforms to Alberta’s Mental Health Act, RSA 2000, c-13. The plaintiff, who was involuntarily detained and treated at Foothills Hospital for nine months, disputed his detention and challenged the constitutionality of several provisions of the Mental Health Act. He was diagnosed with a neuro-cognitive disorder and had also struggled with alcoholism and the physical injuries resulting from a car accident.

The first decision in this case, JH v Alberta Health Services, 2015 ABQB 316 (CanLII), addressed JH’s detention. The Mental Health Act has several requirements for involuntary admission, including the presence of a “mental disorder”, which is defined as a “substantial disorder of thought, mood, perception, orientation or memory that grossly impairs (i) judgement (ii) behaviour, (iii) capacity to recognise reality, or (iv) ability to meet the ordinary demands of life” (ss 8(1)(a) and 1(1)(g)). In finding that JH did not meet this test, Justice Eidsvik cited recent medical tests categorizing his impairment as “mild”. She also noted that the treating doctor’s evidence “consisted mainly of bald conclusions without much explanation about how he arrived at them or how he could reconcile serious differences in opinion [with other health professionals] on J.H.’s capacities” (para 25).

In addition to the presence of a “mental disorder”, an additional requirement for involuntary admission is that the patient is “likely to cause harm to the person or others or to suffer substantial mental or physical deterioration or serious physical impairment” (s 8(1)(b)). Justice Eidsvik found that the risks created by JH’s neuro-cognitive disorder were not “to the level that J.H.’s right to self-determination and freedom should be curtailed involuntarily” (para 28). Although Canadian provinces use a range of language to describe the level of harm required for involuntary admission, there has been a shift in several provinces towards less onerous requirements. For example, Alberta’s standard for involuntary admission was once the onerous “likely to present a danger to the person or others”, before the more lenient “or to suffer substantial mental or physical deterioration or serious physical impairment” was added to the law.

There are policy arguments in support of a less onerous standard, such as not wanting to wait until a patient deteriorates to the point of dangerousness before medical intervention. However, this case highlights how a less onerous standard gives doctors too much discretion to detain patients. One wonders how many other patients with “mild” impairments are currently detained in Alberta hospitals. Compounding this concern is the fact that those who review involuntary admissions decisions can be deferential to the point of abdicating their responsibilities. Before proceeding to the Court of Queen’s Bench, JH’s involuntary admission was considered by a Review Panel. Justice Eidsvik criticized the Panel’s reasons on the basis that they “basically say that they agreed with the Hospital” and “were wholly inadequate in that they did not discuss the factual basis upon which the criteria [for involuntary admission] have been met—they simply recited the criteria without more” (para 5).

Similar to Review Panels, Justice Eidsvik noted that “[n]ormally the Courts are very deferential to treating physicians” (para 25). If both Review Panels and Courts are deferring to doctors, who then is scrutinizing these decisions to detain patients—often for long periods of time? Justice Eidsvik cited evidence that between April 1, 2015 and March 31, 2016, there were 326 patients involuntarily admitted for more than six months and the average stay of these long term-patients was 476 days (para 24). Interestingly, in PS v Ontario, 2014 ONCA 900 (CanLII), the Court stated that the plaintiff’s detention in a psychiatric hospital because he posed a risk to the public brought “his involuntary committal into the category of ‘close or analogous to criminal proceedings’, where greater judicial vigilance is required” (para 80, emphasis added).

Another issue highlighted by this case is the lack of community support for individuals with mental illnesses. JH was cooperative with treatment, was working diligently with a social worker, and his previous employer said he could have his job back upon his discharge from hospital. His treating physician even said that he would discharge JH “if community supports were in place” (para 10). It is concerning that patients are involuntarily hospitalized merely because there are insufficient community supports. Several cases raise constitutional arguments where the liberty of individuals with mental illnesses is jeopardized due to resource constraints.  In PS v Ontario, the Court of Appeal found that “protection of the liberty interest requires appropriate steps to be taken to facilitate, to the extent possible, the individual’s eventual re-integration into the community” (para 113). In R v Conception, 2014 SCC 60 (CanLII), a case relating to treatment orders in the criminal mental health context, the majority acknowledged that “bed shortages in mental health hospitals thus create an ongoing tension between medical resource constraints and the accused’s medical, legal and liberty interests” (para 46).

Although the issue of JH’s detention was resolved in 2015, the 2017 decision addressed his standing to proceed with his Charter claim. Justice Eidsvik agreed with the defendants that JH’s discharge rendered the case moot, but allowed it to continue. She found that “considering the temporary nature of most certificates [of involuntary admission] and their short duration, a live controversy is not likely to be a common occurrence” (para 23). She also found that the “issues raised here are of public importance and their determination is in the public interest” (para 27). It is important that other judges follow Justice Eidsvik’s lead, as many patients who are involuntarily detained are not in a position to pursue litigation. Furthermore, mental health statutes in most provinces have not been the subject of constitutional challenges, despite their significant impact on the right to liberty and the vulnerability of the populations to which they are applied.

Although JH challenges several provisions of Alberta’s law, one particularly interesting issue is the constitutionality of forced treatment following involuntary admission. There is significant variation in how Canadian provinces address this issue. At one end of the spectrum is British Columbia, whose Mental Health Act, RSBC 1996, c 288, permits treatment without consent, regardless of whether a patient has capacity. Specifically, if a patient is detained, “treatment authorized by the director [of a mental health facility] is deemed to be given with the consent of the patient” (s 31). The patient’s only recourse is to request a second medical opinion on the appropriateness of the treatment, which the director must “consider”. This approach can be criticized for its disregard of autonomy, its paternalism, and the fact that it may discourage patients from seeing psychiatric help. This provision is the subject of an ongoing constitutional challenge filed by two patients who were forced to receive medication and electroconvulsive therapy. The fact that this challenge to BC’s law did not occur until 2016 underscores the importance of Justice Eidsvik’s approach to standing.

At the other end of the spectrum from BC is Ontario. If an incapable patient has a prior capable wish, that wish must be followed. In Fleming v Reid, [1991] OJ No 1083 (QL), 1991 CanLII 2728, the Ontario Court of Appeal upheld the right of two incapable schizophrenic patients to refuse neuroleptic drugs, as both had previously expressed a refusal while they were capable. According to Justice Robbins,

The right to determine what shall, or shall not, be done with one’s own body, and to be free from non-consensual medical treatment, is a right deeply rooted in our common law. …These traditional common law principles extend to mentally competent patients in psychiatric facilities. They, like competent adults generally, are entitled to control the course of their medical treatment. Their right of self-determination is not forfeited when they enter a psychiatric facility.

If an Ontario patient has no prior capable wish, then the patient’s substitute decision-maker (SDM) will give or refuse consent in accordance with the patient’s best interest. Ontario’s best interest test, which is set out in the Health Care Consent Act, 1996, SO 1996, c 2, sch A, s 21(2), .blends non-medical considerations (i.e. the values and beliefs of the incapable person) with medical considerations (i.e. whether the treatment is likely to improve the patient’s condition, whether the benefit of the treatment outweighs the risk, and whether a less restrictive or intrusive treatment would be as beneficial). Critics argue that Ontario’s approach results in the long-term warehousing of patients without treatment, which may infringe liberty more than compelling treatment for a short period of time in order to stabilize the patient’s condition. Furthermore, there are concerns about determining when a prior capable wish is applicable.  For example, should a decades-old refusal to take psychiatric medication be applied to new drugs with greater efficacy and significantly fewer side effects?

In Alberta, if an involuntary patient is not competent, then a SDM is called upon to provide consent. However, unlike Ontario, where SDMs are bound by prior capable wishes and non-medical considerations such as the patient’s beliefs and values, Albertan SDMs are only permitted to consider the medical implications of treatment for involuntary patients: whether the patient’s condition is likely to improve with treatment, whether the patient’s condition is likely to deteriorate without treatment, whether the benefit of treatment outweighs the risk, and whether the treatment is the least restrictive and intrusive with the same anticipated benefits and risks (s 28(4)). Also unlike Ontario, the refusal of a competent patient can be overridden. If a SDM or competent patient refuses consent, a physician can seek an order to compel treatment from a Review Panel, who will then consider the above-mentioned list of medical considerations (s 29). Alberta’s approach, which is arguably closer to that of BC than Ontario, is certainly vulnerable to constitutional challenge.


This post may be cited as: Lorian Hardcastle “Is Alberta’s Mental Health Act Sufficiently Protecting Patients?” (18 September, 2017), online: ABlawg, http://ablawg.ca/wp-content/uploads/2017/09/Blog_LH_Mental_Health.pdf

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About Lorian Hardcastle

J.D. (Dalhousie), LL.M. and S.J.D. (Toronto). Assistant Professor. Please click here for more information.
This entry was posted in Constitutional, Health Law. Bookmark the permalink.

4 Responses to Is Alberta’s Mental Health Act Sufficiently Protecting Patients?

  1. Jason Morris says:

    Thanks for drawing some attention to this issue.

    I act as duty counsel before Mental Health Review Panels.

    I’m very grateful that the court found that the case should be heard despite mootness. Because the process of getting the legislation in front of a judge in Alberta is… challenging.

    Consider first that the Mental Health Act states that there is a statutory appeal de novo when a patient disagrees with the result from the Mental Health Review Panel. This sounds like it is designed to remove restrictions from the Judge in findings of fact, which ought to be beneficial.

    The unintended side effect is this: Consider that you are a patient who says that the mental health review panel got the decision wrong because they misinterpreted the law of competence, for example. You don’t want the court to reconsider the facts. You just want a judge to say “your interpretation of the law of competence was wrong, do it again.”

    Usually, you would seek judicial review. However, judicial review is not available where there is an adequate alternative remedy. You are obliged to take those remedies first. In this case, a de novo appeal is an adequate alternative remedy, because there is no decision of the Review Panel that a judge can’t completely overturn in a de novo hearing.

    However, in a de novo hearing, the emphasis is on the facts, and the judge uses their own interpretation of the law, and pays no attention to what it is that the mental health review panels said about either, except, as in JH, to note that their reasons are largely unhelpful in determining what they thought the law was, what they thought the facts were, and how they combined the two to reach a decision.

    Consider also, the likelihood that a person suffering from a mental disorder of sufficient severity that at least two psychiatrists thought hospitalizing them against their will was both legal and prudent, whether that person is likely to pursue legal remedies. Legal Aid will pay for appeals, but the system requires the patient to contact legal aid directly. Patients typically have access to a unit phone only for limited periods of time, and wait times for Legal Aid’s phone line regularly approach an hour or longer. If somehow they manage to start the appeal process, the Court of Queen’s bench is currently scheduling things more than a year in the future if they are scheduling them at all. So the chances that the person will be out of hospital prior to the matter appearing before a judge are extremely high. Patients who are discharged seldom push the matter forward out of the interests of improving the system, and quite rightly, because litigation is not conducive to recovery from mental health problems. If somehow the matter does appear before a judge at the Court of Queen’s Bench, the hospital may have suddenly cancelled the certificates the night prior to the hearing. This is not a hypothetical scenario. The hospital will then argue that the matter is moot. If they fail on that argument, they then fail on the substantive matter because they brought no evidence to court, and the certificates are cancelled without judicial consideration of the law at all.

    It is only where you have a patient with the motivation to argue the constitutional issues despite having been discharged from the hospital, and who does not see that challenge as injurious to their mental health or is willing to take the risk, AND where the Court finds that the matter should be heard regardless of mootness where these matters will actually appear at court.

    That is why, to my knowledge, the substantive law of the Alberta Mental Health Act has not been judicially considered in a reported decision in Alberta since prior to the last amendment in 2007.

    So that explains why the courts have not commented on the law. But the results of the courts not commenting on the law is that any errors that the Mental Health Review Panels are making in their interpretation of the Act are impossible to correct. This results in different interpretations of the procedural requirements of the law depending on the region of the province, or the hospital in which you are a patient. And it results in many years of training by the review panels of psychiatrists about what sorts of applications will and will not be granted and why, meaning that any errors in the panels’ interpretation of the law are passed along to the psychiatrists.

    As far as the constitutionality of the Mental Health Act, two questions must be asked. One, is the act constitutional as it is drafted. Two, is the act constitutional as it is applied by the Review Panels.

    Professor Hardcastle mentions the availability of imposed treatment, and states that Alberta’s legislation is closer to that of BC than Ontario. I respectfully disagree. Section 27 of the Act allows a doctor to appoint a SDM for an incompetent patient. The definition of incompetence is set out in Starson v Swayze at the SCC, and is a very high standard to meet. The person need not agree that they are ill, need not agree that what they are experiencing are symptoms, need not agree that the symptoms are negative, need not be reasonable with regard to their decisions. The patient must merely acknowledge the manifestations of their illess (e.g. “I hear the voices of angels” would suffice), and they must also be able to hold in their mind the factors that would go into the determination on the treatment (e.g. “The doctor thinks the medication will make the voices go away, and will make my life better.”).

    This is the legal test for competence in civil mental health matters, but it not the legal test for competence which is applied.

    Unlike almost all jurisdictions, Alberta provides a less-infringing method of ensuring that the objects of the act – the patient’s well-being, the well-being of the public, and the patient’s liberty – are protected. This is the ability to seek a treatment order to override the decision of a patient or SDM who refuses consent for something that the doctors consider in their best interests.

    A treatment order overrides only a person’s single decision. Declaring the person incompetent deprives them of all decision-making, including the decision making that they are doing perfectly well. The constitutional principle of minimal infringement requires the hospital to prefer the remedy which least injures the liberty of the patient. That would be the treatment order in the vast majority of cases.

    However, at least in the region in which I appear before Review Panels, treatment orders are used scarcely, and certificates of incompetence are used pervasively. Under cross examination as to how and why they found the patient to be incompetent to make treatment decisions, the psychiatrists will regularly offer only those matters which the SCC has determined to be irrelevant: the patient does not understand that they are sick, the patient does not believe that the medication is a good idea.

    Those factors ARE relevant if the doctor seeks a treatment order. They are not legally relevant if the question is whether the person is totally incompetent.

    There are good legal questions to be asked about the law of incompetence in Alberta. If a person is competent to decide whether to grant consent for a pain reliever, is it possible that they could also be incompetent to decide whether to take an antipsychotic? Under what circumstances? How do we treat people whose competence fluxuates? Does a psychiatrist require the patient’s consent in order to withdraw a treatment prescribed by another psychiatrist? Are the panels in Alberta placing too low a hurdle before doctors who seek to prove a patient is incompetent?

    There are also procedural questions that under normal circumstances might have been answered by the Courts: Is it OK for the panel to peruse the patient’s chart, in the absence of the parties, during a decision meeting? Do the decisions of the mental health review panels provide adequate reasons? Is it acceptable for the Review Panel to accept a written withdrawal of an application for a review of an incompetence certificate, or is it unreasonable to presume that person that the hospital alleges to be incompetent to make treatment decisions, and whose liberties are at the discretion of the hospital, is not likely to be coerced by the hospital to withdraw their applications for hearings in exchange for temporarily increased privileges? If a doctor states that they will not be available for a scheduled date, and the hearing can be rescheduled to the following date without violating a statutory deadline imposed on the Panel, is it procedurally fair for the Panel to reschedule the hearing without asking whether the patient objects to being kept against their will without recourse for a further week?

    But none of these questions have been answered and none will be in the foreseeable future, because questions of law don’t have anywhere realistic to go.

    And this is true despite the fact that we are talking about the single most vulnerable group of people under the law in Canada. It is only the mentally ill, and no one else, who can be held indefinitely by the government, medicated against their will, and there is no statutory requirement that they be placed before a judge ever, and no requirement that they are placed before an administrative tribunal for the first six months, unless the mentally ill person has the wherewithal to request a hearing.

    And unlike the criminal justice system, which guarantees people are seen by a judge within days upon entering custody, and Legal Aid makes considerable efforts to ensure that every such appearance will have the help of a duty counsel, duty counsel for Review Panels are appointed only when requested by the mentally ill person.

    The system is not perfect. But from the perspective of protecting the liberty of the mentally ill, Alberta’s legislation is among the most protective. How that legislation is applied is a totally different question. The procedural safeguards afforded criminals against misuse of the law or incorrect interpretation of the law far exceed what is available to formal patients.

    In my opinion, the Alberta Mental Health Act has been applied less constitutionally than it was written for three decades or more, and the normal procedures for correcting those sorts of errors have been foreclosed, or do not work properly.

  2. Anne McVea says:

    This was an interesting read in an area I had occasion to wonder about. As a family law practitioner, I have had a couple of files where spouse had the other spouse committed to the psych ward for a few days or weeks and, in the parties’ absence, promptly took custody of the children or sold the matrimonial home. In both cases, the physicians at the hospital appeared to accept the word of the police or the family doctor without much scrutiny or did a very minimal examination at the hospital [judging by the paperwork] before committing the spouse . In one case, the family doctor took the word of the Husband and accepted his story “hook, line and sinker” despite no prior history of mental problems in the Wife . He called the police to pick her up. The Husband was an executive. The Wife was a homemaker.

    When parties break up/separate , one or the other or both often do act a little crazy or drink more due to this stressful time. I don’t think one should necessarily be committed for a “nasty breakup” and then lose access to your children as a result of an opportunistic spouse.

    When the committed party eventually gets out of hospital, there is a stigma that they must be bonkers if they were in the psyc ward and shouldn’t have contact with the children. The onus is then on them to prove they are not mentally-disturbed to the satisfaction of a judge in a court system fraught with delay.

    Of course, any mental health “incident” is a stigma in the family law court system. We now see parties who refuse to get treated for this reason which has its own set of problems.

    One also can’t help but wonder if the same scrutiny needs to be applied to elderly people who get labelled as having dementia and locked up in continuing care facility wards where they cannot leave a very restricted area. Dementia is on a spectrum (as I understand) yet these people are deprived of their freedom if they do not have an advocate or family to take them out of “jail”.

    Good for the justice system for hopefully encouraging more rigorous scrutiny of commitals under the Mental Health Act and thank you for this post.

  3. AJM (maintaining my son's privacy) says:

    I am a lawyer with long experience in dependent adult, child welfare and family law. I am, like all lawyers, trained in the traditions of dignity and automony. I am also trained in the teachings of Thomas Szasz and the so called “myth of mental illness”.

    I am also the parent of an adult living with the permanent effects of schizophrenia. I have seen the damage done when it is untreated. Harm to self or others is small aspect of these illnesses. My son would never – even at his most delusional – hurt himself or others. However, this brain disease – left untreated – has lead to permanent intellectual, executive and social impairment and dependency and inability to work . My child was never a physical “danger to himself or others”, but his refusal of treatment for several years caused a terrible loss. Only because of the current legislation was there a path to treatment and then to AISH and stable, off the street, living.

    Victims of schizophrenia and other serious mental illnesses do not choose the disease or the way of life that may result. It does not bring dignity or autonomy to be robbed of one’s ability to work or to need prompting to attend to personal care.

    Oh goodness the mental health system is far from perfect! – there are no beds, there are not enough doctors, people wait untreated for hearings, the public is horribly ignorant, some people are detained improperly and many more are left on the streets due to lack of beds, lack of treatment facilities or lack of caring. Families who try to help their loved ones are stressed and lost.

    Let us not waste time and resources on a Charter challenge. There is much more that can be done in other spheres. And much much harm that can result from limiting or creating uncertainty in the law.

  4. Lorian Hardcastle says:

    Thank you for your comments everyone. I am looking at this law from an academic vantage and so I appreciate your input with its actual operationalization.

    Jason, I really appreciate your detailed comments on how the act actually plays out (especially the issues with speaking with duty counsel!). You differentiate Alberta on the basis of treatment orders being an intermediate remedy before a declaration of incompetence. Ontario’s may, I suppose, get to the same result in that the Health Care Consent Act says that there is to be a presumption of consent and that a person can be incapable for the purposes of some decisions but not others. In that way, you might actually get to a somewhat similar result as Alberta in that an Ontario patient might be declared incapable for the purposes of a specific decision (i.e. the same type of decision a treatment order would be issued for in Ontario) but be otherwise capable to make other treatment decisions. I suppose that I would like to see more room in Alberta’s act for non-medical conditions to factor in as they do in Ontario (in theory). That being said, I suspect the result could often be the same–Ontario’s Consent and Capacity Board may very well tend to defer to the same medical considerations that Alberta instructs a Panel to consider rather than giving a lot of weight to non-medical considerations like the patient’s “values” for which there would be limited evidence. Although the various provinces have different legislation–different definitions of mental illness/disorder, different criteria for involuntary admission, etc.–I have often wondered whether the legislation makes much difference to who is hospitalized and who isn’t. I would love to see a study where doctors operating under different provincial regimes are given the same patient charts and have to determine whether the patient would meet their provincial requirements (that would be excellent evidence for a minimal impairment argument!). Although I characterized Ontario as being more protective of autonomy in terms of things like prior capable wishes, one thing that I didn’t mention is that when a patient is detained under their legislation, although it doesn’t include the power to treat the patient, it does include the power to “restrain” (i.e. chemically or physically) the patient. I wonder whether this is being done in lieu of treatment in some cases since it is just easier than jumping through the hurdles to get consent. I would love to see more research on this. But anyway, I just came here to thank you for your comments but then ended up writing more. I suppose that is a testament to how interesting this topic is and I am eager to see how this case plays out!

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